Will Atlanta Run Out of Water? The US Supreme Court is Set to Decide

As parts of our state officially enter another drought, the Georgia-Florida dispute over water use in the Apalachicola-Chattahoochee-Flint River Basin will go to trial in the US Supreme Court at the end of October. We are re-posting the first in a series of Water Wars articles to get you up to speed on the historical context of the dispute and its impact on future development in the Southeast.

When you go into land in [Los Angeles] just look out the window and just look at the complete lack of planning. There’s not even zoning laws. They’ll build like a skyscraper next to a house, next to a gun range, then there’s like a f***ing daycare center. The city doesn’t even work; even when everything else does work. So god forbid the dollar collapses or some crazy s**t happens. Where you gonna go in a city like that? See you guys are all right out here in Atlanta, you know you’re all right. I don’t know, maybe in Atlanta might be crazy. You’re on the outskirts, you’re fine. You’re fine. You don’t live in a desert. You slam your face in a birdbath, you’re cool. Drink that water for a good thirty days. LA there’s nowhere to go.

They just don’t make enough good land use comedy. That’s from Bill Burr’s show Bill Burr: I’m Sorry You Feel That Way, which he recorded at the Tabernacle here in Atlanta. Los Angeles does, in fact, have zoning laws, but he’s right about treasuring the water in that bird bath; it may soon be the only reliable source of drinking water in the near future and that’s without society collapsing into a Mad Max-like scenario. Clearly that’s a bit of hyperbole, but as many are aware, a reliable and predictable source of drinking water is a major problem for metro Atlanta. So much so that we’ve engaged in a costly 20-plus year legal battle with states that, on paper, we should get along with swimmingly. And now, like bickering school-aged siblings, we’re pleading to our neutral third-party parents to settle the dispute. And like parents of bickering school-aged siblings, the United States Supreme Court will likely create an inadequate resolution for all parties.

Note: This is a three-part piece on the Tri-State Water Wars. This initial piece is a basic overview of the historical and legal aspects of the conflict. Please see our Water Wars page for the second and third parts, as well as updates on additional developments.

The Tri-State Water Wars began back in 1990 when Alabama sued the United States Army Corps of Engineers (ACE) over the allocation of water held in the reservoir known as Lake Lanier. When a federal agency decides to divert water from power-generating activities, which are highly important to residents of Alabama, to drinking water activities, which are highly import to residents of metro Atlanta, a conflict is naturally going to occur. This one decision by ACE set off a string of lawsuits revolving around key federal environmental and administrative law statutes and principles, relatively ancient concepts of basic water rights, and even cartographic and boundary-drawing disputes. While we can label ACE’s decision as the catalyst, the conflict over how to allocate water in the Apalachicola-Chattahoochee-Flint River Basin (ACF Basin) between Georgia, Florida, and Alabama was always going to be problem. It was a time bomb waiting to explode.

Laying the Groundwork

Let’s back up to the beginning of the 19th Century and take a look at how the ingredients formed into our current disaster. Back in the early 1800s, in Gibbons v. Ogden, the US Supreme Court ruled that the Commerce Clause of the US Constitution gives the federal government control over interstate waterways. Today we mainly see this federal authority in an environmental capacity, but for the dozens of decades following the Ogden decision, the federal government used the power for navigation and energy purposes. In the 1930’s, ACE, under the direction of the US Congress, decided the Apalachicola-Chattahoochee-Flint River Basin needed to be developed for navigation, flood control, and energy purposes.

Dams (in red) of the ACF Basinfws.gov

In the Rivers and Harbors Act of 1946, Congress authorized the construction of Buford Dam, which would create Lake Lanier. Over the subsequent decades, four more dams would be authorized as part of the larger ACF Basin system. Of the created reservoirs, Lake Lanier holds the largest amount of water, accounting for 66 percent of the ACF Basin’s total water reserves. The Newman Report is a critical document that will become important decades later when lawsuits are filed over the use of water in Lake Lanier. It was created by ACE in 1946 and attempted to detail the goals and purposes of the ACF Basin system, particularly the Buford Dam. While the initial goal of the ACF system Basin system was for flood control, navigation, and energy production, the Newman Report also noted the value of water supply to metro Atlanta. While it did not quantify the value, as it did with the other purposes, the Report stated that flow rates along the Chattahoochee may have to be changed to accommodate the growing demand for water in metro Atlanta. Importantly, the City of Atlanta did not contribute any money to the project as water supply to the city was considered too incidental.

While the dams in the system were being constructed and everyone generally had a good idea of what was going on, Congress passed the Water Supply Act in 1958. This legislation allowed the federal government to work with local communities in creating water supply plans as well as authorizing the use of federal reservoirs for domestic water use. While this was certainly a progressive step, it allowed the conflict over how to use water in Lake Lanier to blossom. If only today we had the same problem of Congress inadvertently creating problems by being too productive. The Water Supply Act catch is that it only allowed federal reservoirs to allocate future water use based on the original purpose of the reservoir. So if the dam/reservoir was created for navigation and energy purposes, water in it can’t be used for drinking purposes, unless Congress specifically approves the use. The obvious conflict is going to center around the original purpose of the dam/reservoir. Here in lies the underlying arguments in the water wars lawsuits.

Some Unhappy Parties

Originally only the Cities of Buford and Gainesville were permitted to withdraw water from Lake Lanier. However, following the Water Supply Act, ACE contracted with both the City of Cumming and Gwinnett County to allow for water withdrawals. In 1981, following a finding that 90 percent of water in metro Atlanta comes from either the Chattahoochee River or Lake Lanier, the US Senate recommended another dam be constructed on the Chattahoochee River south of Atlanta. Meanwhile, back in the 1970s, Congress instructed ACE to study ways to provide drinking water to metro Atlanta. Finally in 1989, after a decade of severe droughts, ACE decided that the best option to provide metro Atlanta with water was to reallocate water in Lake Lanier. Acting under the apparent authority of the Water Supply Act, ACE recommended reallocating 20 percent of the water that was reserved for hydropower to drinking water for metro Atlanta. Naturally people weren’t happy with this and so the Tri-State Water Wars officially commenced.

Downtown Gainseville, GA

One of those unhappy parties was and still is Alabama. Twenty-seven percent of Alabama’s electricity comes from nuclear power. Nuclear power requires a cooling agent: water. The largest nuclear power plant in Alabama, providing 34 percent of the nuclear power, is the Farley Power Plant, which sits along the Chattahoochee River. It requires a certain amount of water to cool the reactors and therefore would like the Chattahoochee to have a certain minimum flow rate. While nuclear power is the predominate use of water in the ACF Basin, Alabama also needs the water for drinking and agricultural purposes.

Another unhappy party is and was Florida. Florida doesn’t care so much about the drinking or agricultural uses of the ACF Basin water, but the environmental, recreational, and economic uses. Where the Apalachicola River drains into the Gulf of Mexico lies one of the richest and most productive estuaries in the country. The River and estuary is home to 131 fish and estuarine species. At times, the Apalachicola Bay provides 10 percent of the entire country’s oyster catch. In 2008, this catch resulted in $8.3 million. Three endangered species of mussels call the Apalachicola River or Bay home. The oysters and mussels rely on adequate levels of freshwater from the Apalachicola Bay, so if less water is leaving the Buford Dam then these species are directly impacted. Simply put, water from the Apalachicola River creates a pristine environment, which results in money from tourism and catches. On top of that are the environmental aspects, which can’t be easily quantified, but are clearly beneficial and clearly protected by federal law.

Interestingly, southwestern Georgia relies heavily on the ACF Basin for agricultural purposes. While Alabama and Florida entities can be relatively unified in arguing for more water in specific places, Georgia is faced with a conundrum of sorts. More water for metro Atlanta necessarily means less water for agriculture in southern Georgia, especially if that water has to be shared with Alabama and Florida. Half of the $4.47 billion Georgia generates from irrigated crops comes from peanuts and cotton and the waters of the ACF Basin irrigate just over 42 percent of Georgia’s peanut crop. Ninety percent of the waters of the Flint River Basin are used for agricultural purposes.

Breaking Down Water Use

As of 2005, the breakdown of uses is as follows: thermoelectric power generation accounted for 40 percent of withdrawals, public supply accounted for 30 percent of the withdrawals, agriculture accounted for 18 percent of withdrawals, commercial-industrial self-supplied users accounted for 10 percent of withdrawals, and domestic self-supply users accounted for 2 percent of withdrawals. It’s important to note that thermoelectric-users return almost 100 percent of the water they withdraw, though that returned water does cause localized ecological harm as it is much warmer than the surrounding water. Comparatively, in the dry year of 2000, public supply users returned only 49 percent of the water to the Basin system. During times of lower-than-average rainfall, the return rate is much lower than normal. In 2005, an above-average year for rainfall, public supply returned 62 percent of water withdrawals to the Basin system.

Current (2016) Lake Lanier Drought Conditions

This is just to name the major legal players. Countless other people are impacted by how water is allocated in the ACF Basin, though they may not have legal standing to bring suit. The waters have extensive recreational and aesthetic value, which serve both economic and emotional purposes. The unpredictable flow of the Chattahoochee River and rise and fall of Lake Lanier hurts the economic interest of adjacent landowners and recreational outfitters. Countless individuals use the waters of the ACF Basin for boating, fishing, and other recreational purposes. These are just the economic uses. An un-quantifiable value lies in the sheer beauty of the area. People buy and rent homes in the area for the aesthetic value. People hike, bird-watch, and camp in the area for the aesthetic value. These incidental users have largely been reduced to the sidelines as state leaders continually fail to reach compromise.

Alabama Starts the War

The Tri-State Water Wars began back in 1990 when Alabama filed that initial suit against the US Army Corp of Engineers (ACE). This initial suit alleged that ACE failed to comply with provisions of the National Environmental Planning Act (NEPA) when it contracted with cities and counties for withdrawal permits for Lake Lanier. Alabama sought injunctions to prevent ACE from honoring these contracts and to prevent it from permitting future withdrawals. Florida joined the suit as an intervenor on Alabama’s side and Georgia joined the suit as an intervenor on ACE’s side. Eventually Alabama and ACE agreed to a joint stay so that all parties could attempt to negotiated an out-of-court agreement.

The parties then entered into the 1992 Memorandum of Agreement, which allowed ACE to honor existing water withdrawals from Lake Lanier and to grant new ones based on demand. In 1997, the parties then entered into the Apalachicola-Chattahoochee-Flint River Compact (ACF Compact). However, this was less of a “we’ve got a plan” compact and more of a “let’s agree to make a plan in the future” compact. The ACF Compact simply asked the states to agree on a way to calculate water allocation. A commission, made up of the governors of the three states and one federal official, was tasked with creating this allocation system. Unfortunately, most major decisions required a unanimous vote of the governors. Unsurprisingly, given the history of this conflict, the commission was unable to reach an agreement on how to allocate water.

The only thing the states could agree on was to extend the automatic termination of the compact; and they did that several times. Ultimately, the ACF Compact terminated on August 31, 2003 after the states could no longer agree to another extension. The major issues centered around Florida being unsatisfied with an allocation metric based simply on minimum river flow levels and Georgia being unsatisfied with any non-Georgia official having any say as to how much water would be allowed in reservoirs at any given time.

Okay, so the “compact” is dead, now what? Well, now we have a messy back-and-forth between the Federal District Court for the District of Columbia and the Federal District Court for Alabama. In 2000, the Southeastern Federal Power Customers (SFPC) filed suit in the DC District Court. The SFPC is a group of electric power suppliers who purchase energy generated by the Buford Dam. The basic complaint was that ACE was overcharging for electricity because it hadn’t adjusted prices based on the fact that it was now allocated some of the water in Lake Lanier for drinking purposes. Prior to any adjudication on the merits of the case, the SFPC, ACE, and the State of Georgia (an intervenor) agreed on a settlement. The settlement required ACE to conduct the relevant NEPA studies and to then issue water withdrawal contracts, if not prohibited by the findings of the NEPA studies.

The DC District Court dcd.uscourts.gov

Remember the 1990 joint stay order between Alabama and ACE? Well, it’s relevant again. That joint stay order prevented ACE from entering into any new contracts without the consent of Alabama and Florida. Following the settlement agreement reached in the DC Court, Alabama filed a restraining order against ACE based on the terms of the 1990 joint stay order. Ultimately the Alabama District Court found that the settlement agreement reached in the DC District Court case violated the 1990 stay order and thus they issued a preliminary injunction against ACE. The 11th Circuit Court Appeals, however, vacated this judgment in 2005, finding that Alabama and Florida failed to show the likelihood of future harm based on ACE’s actions. They did a great job of showing past harm, but preliminary injunctions require the showing of future harm and the states failed to show this. Therefore, the 2005 11th Circuit judgement maintained the status quo: ACE could continue to issue water withdrawal permits to Georgia municipalities.

Major Escalation in the Late 2000’s

We’ve now arrived at the real goods of the water wars. The case where the major underlying legal principles come into play: regardless of settlement agreements and stay orders, is ACE actually operating under proper authority when it allocates Lake Lanier water? This was the question for the District Court for the Middle District of Florida back in 2009. In a landmark decision, the court ruled that ACE violated the Water Supply Act by allocating water for drinking purposes without proper authority. Based on the facts used by the court, the purpose of Buford Dam was never to provide drinking water. The Water Supply Act only allows ACE to allocated water based on the original purpose of the dam/reservoir. Therefore, ACE violated basic administrative law principles by overstepping it’s authority. This effectively meant that any withdrawal permits from Lake Lanier, other than the original one’s issued to the Cities of Buford and Gainesville, are void. The court allowed current withdrawals to continue for three years while the Atlanta municipalities and ACE attempted to get Congressional approval for withdrawals.

Buford Dam Can Be Used for More Sprawloriginalgreen.org

Enter Georgia’s favorite court: the 11th Circuit of Appeals. In 2011, the 11th Circuit vacated the 2009 decision, finding that one of the original purposes of Buford Dam was for the creation of the drinking water. Therefore the court opened the door for additional water withdrawal permits from Lake Lanier to be valid under the Water Supply Act. However, before the court can decide ACE’s power under the Water Supply Act, ACE must first decide. So, the court tasked the agency with issuing a formal report on how much power it had to allocate water in Lake Lanier for drinking purposes. In 2012, ACE decided it had the authority to grant all of Georgia’s requested 705 million gallons-per-day water supply request.

Finally, after continuous defeats at the hands of the 11th Circuit and the Corps of Engineers, Florida formally requested the US Supreme Court to intervene in 2013. The US Supreme Court has original jurisdiction over interstate controversies, meaning it is the trial court for interstate disputes. This past November the Court accepted Florida’s request and this past week it appointed a Special Master to oversee the trial. This is the final and ultimate legal step for interstate water wars. The previous cases were about authority under specific statues and violations of settlement agreements, but the Supreme Court case will automatically go to the nature of the dispute: how much water does each state get? It will create a binding agreement that determines how the waters of the ACF basin are used on a state-by-state basin.